C. J. Mathew vs State Of Kerala
2024 Latest Caselaw 27169 Ker

Kerala High Court

C. J. Mathew vs State Of Kerala on 11 September, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

                                            2024:KER:69352
CRL.MC NOs. 5101 & 6065 OF 2017

                              1

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY,THE 11TH DAY OF SEPTEMBER 2024/20TH BHADRA, 1946

                  CRL.MC NO. 5101 OF 2017

CC NO.916/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS- IX,

                          ERNAKULAM

PETITIONER/COMPLAINANT:

          C.J.MATHEW
          AGED 69 YEARS,S/O LATE C.D.JOHN, FLAT
          NO.5B,TRINITY CROWN, EDAPPALLY, KOCHI-24.
          BY ADVS. SRI.P.SANJAY
          SRI.BIJU MEENATTOOR
          SMT.A.PARVATHI MENON
          SRI.S.SREEKUMAR SR.


RESPONDENTS/STATE/ACCUSED:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.
    2     K.J. PAUL
          AGED 50 YEARS,S/O LATE K.V.JOSEPH,
          KUREEKKAL HOUSE,UNIVERSITY P.O, KOCHI-24.
          BY ADVS. SRI.BAIJU JOHN
          SRI.I.V.PRAMOD
          Alan Papali
          SRI.T.R RENJITH SR PP


THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.09.2024, ALONG WITH Crl.MC.6065/2017, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
                                             2024:KER:69352
CRL.MC NOs. 5101 & 6065 OF 2017

                               2


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

WEDNESDAY,THE 11TH DAY OF SEPTEMBER 2024/20TH BHADRA, 1946

                  CRL.MC NO. 6065 OF 2017

CC NO.338/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,

                             ALUVA

PETITIONER/COMPLAINANT:

          C. J. MATHEW
          AGED 70 YEARS
          S/O. LATE C. D. JOHN, FLAT NO.5B,
          TRINITY CROWN, EDAPPALLY, KOCHI - 24.
          BY ADVS. P.SANJAY
          BIJU MEENATTOOR
          A.PARVATHI MENON
RESPONDENTS/STATE/ACCUSED:

    1     STATE OF KERALA
          REPRESENTED BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.
    2     K. A. MATHAI
          AGED 48 YEARS
          S/O. LATE K. A. KUNJU, KOCHAPILLY HOUSE,
          CHEMBUMUKKU, VAZHAKKALA, THRIKKAKKARA P. O.,
          KOCHI - 21.
          BY ADVS. SRI.BAIJU JOHN
          Alan Papali
          SRI.T.R.RENJITH, PP


THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
11.09.2024, ALONG WITH Crl.MC.5101/2017, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
                                                     2024:KER:69352
CRL.MC NOs. 5101 & 6065 OF 2017

                                  3



                    P.V.KUNHIKRISHNAN, J.
                     --------------------------------
              Crl.M.C. Nos.5101 & 6065 of 2017
              ----------------------------------------------
          Dated this the 11th day of September, 2024


                              ORDER

These two criminal miscellaneous cases are connected

and therefore I am disposing these two cases by a common

order.

2. Petitioner in these cases is the 1 st accused in

C.C.No.916/2017 on the file of the Judicial First Class

Magistrate Court-IX, Kunnumpuram and C.C.No.338/2017 on

the file of the Judicial First Class Magistrate Court-II, Aluva.

Annexure-A1 is the complaint filed against the petitioner and

others. The offences alleged are under Sections 465, 468, 471

and 477A read with Section 120B of the Indian Penal Code.

Annexure-AI(a) in Crl.M.C. No.5101/2017 is the proceedings

in CMP No.529/2017. According to the petitioner, even if the

entire allegations in Annexure-A1 complaint are accepted in

toto, no offence is made out against the petitioner. Hence this

criminal miscellaneous case.

2024:KER:69352 CRL.MC NOs. 5101 & 6065 OF 2017

3. Heard the learned Senior Counsel Sri.S.Sreekumar,

assisted by Sri.Biju Meenattoor. I also heard Sri.Alen Papali,

who appeared for the complainant.

4. The Senior Counsel takes me through the complaint

and submitted that no offence is made out against the

petitioner. The Senior Counsel also relied on the judgment of

the Apex Court in Mohammed Ibrahim and Others v. State

of Bihar and Another [2009 KHC 1009]. The Senior Counsel

takes me through paragraphs 9 and 10 of the above judgment

and submitted that in the light of the principle laid down by

the Apex Court, no offence is made out. The counsel for the

complainant submitted that the contentions raised by the

petitioner are to be raised before the trial court at the

appropriate stage.

5. After hearing both sides, I am of the considered

opinion that the petitioner in these cases can be allowed to file

a discharge petition before the trial court at the appropriate

stage. There can be a direction to the learned Magistrate to

exempt the petitioner from personal appearance also. All the

contentions raised by the petitioner in these criminal 2024:KER:69352 CRL.MC NOs. 5101 & 6065 OF 2017

miscellaneous cases are left open.

Therefore, these Criminal Miscellaneous Cases are

disposed of in the following manner:

1. The petitioner is free to file an application

for exemption from personal appearance

within three weeks from the date of

receipt of a stamped certified copy of this

order and if such an application is filed,

the jurisdictional court will allow the same

on condition that the petitioner will

appear on the posting dates on which his

presence is inevitable.

2. The petitioner is free to file a discharge

petition at the appropriate stage and if

such a discharge petition is filed, the

learned Magistrate will consider the same

and pass appropriate orders in

accordance with law.

3. All the contentions raised by the

petitioner in these criminal miscellaneous 2024:KER:69352 CRL.MC NOs. 5101 & 6065 OF 2017

cases are left open including the

contentions based on the judgment of the

Apex Court in Mohammed Ibrahim and

Others v. State of Bihar and Another

[2009 KHC 1009].

sd/-

P.V.KUNHIKRISHNAN JV JUDGE 2024:KER:69352 CRL.MC NOs. 5101 & 6065 OF 2017

PETITIONER ANNEXURES

ANNEXURE A1 CERTIFIED COPY OF THE PRIVATE COMPLAINT DATED 05.05.2017.

ANNEXURE A2 CERTIFIED COPY OF THE ORDER IN C.M.P. NO.782/2017 DATED 09.05.2017. ANNEXURE A3 TRUE COPY OF THE REJOINDER DATED 28.03.2016.

ANNEXURE A4 CERTIFIED COPY OF THE SWORN STATEMENT OF THE COMPLAINANT DATED 05.05.2017. ANNEXURE A5 COPY OF MEMORANDUM OF ASSOCIATION. ANNEXURE A6 TRUE COPY OF NOTICE OF PETITIONER'S DATED 11.01.2011.

ANNEXURE A7 TRUE COPY OF THE WRITTEN STATEMENT DATED 16.07.2011.

ANNEXURE A8 COPY OF THE SALE DEED NO.904/2010 DATED 30.03.2010.

ANNEXURE A8(a) COPY OF THE SALE DEED NO.903/2010 DATED 30.03.2010.

ANNEXURE A8(b) COPY OF THE SALE DEED NO.2686/2009 DATED 03.12.2009.

ANNEXURE A8(c) COPY OF THE SALE DEED NO.1618/2009 DATED 20.07.2009.

ANNEXURE A8(d) COPY OF THE SALE DEED NO.1619/2009 DATED 20.07.2009.

ANNEXURE A8(e) COPY OF THE SALE DEED NO.1535/2009 DATED 20.07.2009.

ANNEXURE A8(f) COPY OF THE SALE DEED NO.1534/2009 DATED 20.07.2009.

ANNEXURE A9 TRUE COPY OF REPLY ALONG WITH ANNEX-F FILED BY K. J. PAUL DATED 06.07.2007 TO 30.03.2010.

2024:KER:69352 CRL.MC NOs. 5101 & 6065 OF 2017

PETITIONER ANNEXURES ANNEXURE A-I TRUE COPY OF THE PRIVATE COMPLAINT FILED BEFORE JUDICIAL MAGISTRATE OF FIRST CLASS IX, ERNAKULAM AT KUNNUMPURAM, KAKKANAD AS CRL.M.P. NO.529/2017 BY RESPONDENT NO.2 DATED 20.02.2017.

ANNEXURE A-I(A) TRUE COPY OF PROCEEDINGS IN M.P.NO.529/2017 DATED 20.02.17 TO 03.04.2017.

ANNEXURE A-II TRUE COPY OF THE REJOINDER DATED 28.03.2016.

ANNEXURE A-III TRUE COPY OF THE SWORN STATEMENT OF THE COMPLAINANT DATED 20.02.2017. ANNEXURE A-IV TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF AUGUST BUILDERS AND CONTRACTORS INDIA PVT.LTD DATED 02.06.2007.

ANNEXURE A-V TRUE COPY OF COMPLAINT FILED BY PETITIONER DATED 16.04.2011.

ANNEXURE A-VI COPY OF THE OBJECTION PETITION FILED BY PETITIONER DATED 05.11.2016. ANNEXURE A-VII COPY OF 2ND RESPONDENT'S LEDGER ACCOUNT WITH TRINITY ARCADE PVT.LTD DATED 01.04.05 TO 31.3.06 ANNEXURE A-VIII COPY OF BALANCE SHEET OF TRINITY ARCADE PVT.LTD AS ON 31.03.2009. ANNEXURE A-IX COPY OF COMMUNICATION SENT TO REGISTRAR OF COMPANIES DATED 20.09.2011.

ANNEXURE A-X TRUE COPY OF LETTER DATED 10.07.2017 ISSUED BY THE REGISTRAR OF COMPANIES. ANNEXURE A-XI TRUE COPY OF THE NOTICE SERVED ON THE 2ND RESPONDENT DATED 11.01.2011. ANNEXURE A-XII COPY OF THE FABRICATED BALANCE SHEET OF AUGUST BUILDERS AND CONTRACTORS INDIA PVT.LTD AS ON 31.03.2010 FILED BEFORE THE REGISTRAR OF COMPANIES.